60

amendment process by some commentators and legislators who urge that the probable ground for the decision was the uselessness of requiring presidential approval when the amendment had already been proposed by a supermajority of Congress sufficient to override a presidential veto. In the convention amendment process only a simple majority is required, by the terms of the Ervin Bill, to call a convention or to submit proposed amendments for ratification.

61

However, the ground for decision in Hollingsworth may well have been that the President was simply not intended to have any role in the amendment process. Evidence for this conclusion is found in the arguments of the litigants. The Attorney General, arguing in support of the amendment, did not attempt to justify the failure to obtain presidential approval on the ground that a two-thirds vote and already been required to propose the amendment. On the contrary, he merely argued that the proposal of amendments was much different from Congress' ordinary legislative business, and therefore did not fall within the policy of article I, section 7.62 Moreover, a narrow ground of decision that a veto would be futile would not have met the argument of opposing counsel that a presidential veto, with reasons, could change the minds of many congressmen.

C. Representation at the Convention

63

Section 7(a) of the Ervin Bill provides that the convention is to be "composed of as many delegates from each state as the state is entitled to Senators and Representatives in Congress,' with each state electing two delegates at large and one from each congressional district. The result of this scheme is that the people of less populated states will have proportionately greater representation at the convention than the people of more populated states, despite the fact that the voters of the less populated states already carry more weight at the application and ratification stages.

The present apportionment scheme seems to have arisen as a compromise between the plan of the original Ervin Bill and

235 (memorandum of Professor Kurland), quoting A. McLaUGHLIN, A CONSTITUTIONAL HISTORY OF THE UNITED STATES 635 (1935).

6o See Hearings 65 (remarks of Professor Bickel); id. at 23–24 (remarks of Senators Tydings and Proxmire); Black, supra note 3, at 965.

* See Ervin Bill §§ 6(a), 11(b)(1).

a 3 U.S. (3 Dall.) at 380.

63 When the President vetoes a resolution, he must give his reasons. U.S. CONST. art. I, § 7.

3 U.S. (3 Dall.) at 378–79.

66

strictly proportional representation. The original bill allowed each state only as many delegates as the state had Representatives in Congress, but it negated the value of this equal population representation by providing for voting at the convention by state bloc, with each state afforded an equal voice.67 Severe criticism of this plan 8 caused the bill to be changed to provide for voting by individual delegate. But at the same time the scheme of equal representation was somewhat distorted in favor of the inhabitants of less populous states.

69

The justification for weighting the convention in favor of less populous states may be found in the considerations which presumably caused Senator Ervin originally to provide for voting by state bloc at the convention: (1) each state had an equal voice in the original constitutional convention, and (2) the provision for voting by state at the application and ratification stages evinces an intention on the part of the framers to permit constitutional change through compact among the several states," rather than through a supermajority consensus of the nation's people as a whole. However, the original convention can be distinguished as a unique meeting of thirteen quasi-sovereigns not yet combined in a federal union. And the fact that the states are given an equal voice at the application and ratification stages does not compel adherence to the same principle at all stages of the amendment process. There is nothing in the language of article V to indicate that convention delegates were intended to be the agents of their states or state governments."

71

65 See Black, Latest Move in the "Convention" Game, 113 CONG. REC. 33,675 (1967). The Senate Report on the Ervin Bill gives no justification for the plan. It might be argued that since the convention, in proposing amendments, parallels the function of Congress in the amendment process, its composition as provided in the present Ervin Bill might be justified as "mirroring" that of Congress. The convention, like Congress, would have 100 members elected at large in their respective states and 435 members elected from congressional districts. However, when Congress proposes constitutional amendments, it does so through the independent vote of two separate houses, one of which represents the people on a one man-one vote basis. If the convention were to reflect the makeup of both houses of Congress combined, there would be no independent check by an equal representative body in the amendment process. See New York Bar Ass'n Comm. on Federal Legislation, Proposed Procedures for Federal Constitutional Conventions (S. 215), at 20 (printer's copy Mar. 27, 1972).

66 S. 2307, 7(a), 90th Cong., 1st Sess. (1967).

67 Id. § 9(a).

68 See, e.g., Hearings 15-19 (remarks of Senator Proxmire); id. at 32 (remarks of Professor Bickel).

69 See id. at 15-16 (remarks of Senator Hruska).

70 Id. at 33 (remarks of Senator Hruska).

71 Cf. id. at 32 (remarks of Professor Bickel); id. at 49 (remarks of Professor Mendelson) (nothing in the language of article V compels voting by state bloc at the convention).

In

Even if the framers did assume, based on their own experience, that a constitutional convention would give the states an equal voice, the meaning of article V should not be forever fixed by this assumption. The Constitution should be interpreted, consistent with its express language, in the way in which it can best function in accordance with its underlying principles, even if changed conditions require an interpretation inconsistent with possible specific assumptions of its framers.72 The framers may have anticipated that the alternative amendment avenue would allow the states to modify the terms of their federation if the constitutional scheme proved imperfect after a short test." such a case, it would have been appropriate for states to have an equal voice in the proceedings. Today, however, the states are tightly bound in a strong federal union." The people of the entire nation, and not the states as entities, are seen as the ultimate sovereigns of the nation.75 The alternative amending process is more meaningfully justified today as the exercise by the American people of their power to change the terms on which they are governed than as the reconsideration by the states of the terms on which they compacted to unite themselves. Therefore, article V can justifiably be interpreted as permitting, if not compelling," proportionate representation at the convention on a population basis.

72 Cf. L. HAND, THE BILL OF RIGHTS 14-15 (1958) (justifying the Supreme Court's reading into the Constitution the authority to review the constitutionality of congressional legislation in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)). The notion that the Constitution is a static document which must be interpreted according to the exact or probable intent of its framers has not always been adhered to by the Supreme Court. See, e.g., Brown v. Board of Educ., 347 U.S. 483, 489-90 (1954). The "intent" of the framers should be read to include not only the actual or presumed intent based on conditions existing when the provision was drafted but also an intent that the Constitution be made to work in accordance with its underlying purposes, even if changed conditions necessitate an application which the framers could not have imagined. Cf. L. HAND, supra, at 23-25. Indeed, to rigidly limit a constitutional provision to the discernible intent of the framers may well contradict the fundamental nature of a written constitution, which is more than an ephemeral enactment designed to solve a specific problem. See id. at 14– 15; Bickel, The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 58–59, 64-65 (1955); tenBroek, Use by the United States Supreme Court of Extrinsic Aids in Constitutional Construction, 26 CALIF. L. Rev. 664, 680 (1938). In interpreting article V, a broad scope of judicial construction is especially appropriate because of the paucity of indicia of specific intent and because of the change in our nation from a loose federation of recently sovereign states to a tightly bound and interdependent federal union.

73 See Black Letter 11.

74

• See Hearings 65 (remarks of Professor Bickel); Black, supra note 3, at 964-65.

75 See Bonfield, supra note 40, at 991.

76 A very strong argument can at least be made that the original Ervin Bill

Since the amendment process ought to provide all citizens with an equal voice to the extent consistent with the express words of the Constitution, the one man-one vote rule currently applied to the House of Representatives" and to state legislatures 78 ought to be applied to the convention. The fact that the nation's population is not proportionately represented at either the application or ratification stages of the amendment process makes it especially important that a consensus in favor of constitutional change at the convention reflect a similar consensus among the entire population. Thus, section 7(a) of the Ervin Bill should be changed to provide that one convention delegate be elected from each congressional district. Further, the clause in section 7(a) which now provides for election of delegates "in the manner provided by state law," should be changed to "in the manner provided by state law for the election of Representatives to Congress." 79 The purpose of this latter change would be to guarantee the application of the one man-one vote requirement to the election of delegates, since the states are constitutionally bound to apply the rule to the election of Representatives to Congress.80

D. To What Extent Can the Powers of the Convention Be

Limited, and Who Has the Authority to Limit Them?

Following the realization in 1967 that Congress was close to being compelled to call a constitutional convention, commentators provision for voting by state bloc at the convention, with each state given an equal voice, was unconstitutional. Given today's population variances, this plan might have made it possible for less than a majority of the American people to bring about constitutional change, if only the inhabitants of thirty-eight of the more thinly populated states supported a particular amendment. See Hearings 19 (remarks of Senator Proxmire). This would be inconsistent with the entire constitutional scheme, for it would make constitutional amendment easier than ordinary legislation, which requires a majority vote of the House of Representatives representing the people on a one man-one vote basis. If a constitution is to be justified, constitutional amendment must be more difficult than passing legislation; otherwise, constitutional limitations on the legislative power would be meaningless. Cf. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). 77 See Wesberry v. Sanders, 376 U.S. 1 (1964).

78 See Reynolds v. Sims, 377 U.S. 533 (1964).

79 Of course, even if the Ervin Bill provided for one delegate from each of the nation's congressional districts, this would not be a strict application of the one man-one vote rule, for a few of the most thinly populated states would be entitled to one delegate representing less population than each of the delegates from the more populous states. See Dixon, Article V: The Comatose Article of Our Living Constitution?, 66 MICH. L. REV. 931, 945 (1968). However, the small variance in representation which would result from the provision would be preferable to the increased total number of delegates which would be necessary to achieve accurate equal representation. See id.

and legislators expressed the fear that the convention, once convened, would go beyond the subject matter defined by the applicant states and propose amendments significantly altering the structure of the federal government or abolishing the Bill of Rights.81 In apparent response to such fears, the Ervin Bill provides that applications, to be aggregated toward the two-thirds requirement, must deal with the same “subject,” 82 that the congressional resolution calling the convention must define this subject for the convention,83 and that the convention may only propose amendments of the same "nature" as that stated in the resolution. These provisions give rise to questions whether and to what extent the convention can constitutionally be limited as to subject matter, and whether the bill's provisions would empower Congress to impose excessive limitations. A further question which arises is whether Congress should be the institution to enforce those limitations which can be imposed on the convention.

84

85

1. Can a Convention Be Limited as to Subject Matter, and If So, to What Extent? — As noted above, the Ervin Bill does not represent an attempt by Congress to preclude states from applying for an open convention. Rather, the bill attempts to provide a means by which the states may restrict the convention when they agree on the need for only limited constitutional change.

86

Although it would be contrary to article V if Congress attempted to limit the scope of a convention when the states had applied for an open convention, it would seem to be consistent with, if not compelled by, the article for Congress to limit the convention in accordance with the express desires of the applicant

1 See 113 CONG. REC. 10,102-03, 10,108-09, 10,112 (1967) (remarks of Senators Tydings, Proxmire, Javits, and Dirksen); Sorensen, The Quiet Campaign to Rewrite the Constitution, SaturDAY REVIEW, July 15, 1967, at 18.

82 Ervin Bill § 6(a). Whether applications seeking a convention for different reasons should be counted together toward the requisite two-thirds of the states is not at issue in this discussion, since it is undisputed that they should not be. The Senate Judiciary Committee noted that "two centuries of practice" support the conclusion that a convention should not be called unless the application of twothirds of the state legislatures deal with the same subject matter. SENATE REPORT 9. Indeed, if article V requires a consensus among two-thirds of the states as to the desirability of a constitutional convention, cf. p. 1620, an important part of this consensus would necessarily be similar views respecting the subject matter of the amendments desired. See Corwin & Ramsey, supra note 40, at 195–96. But see L. ORFIELD, supra note 40, at 42.

83 Ervin Bill § 6(a).

84 Id. § 10(b).

85 See p. 1614 supra.

** It would clearly be consistent with article V for the states to request an open convention to revise generally the Constitution. See p. 1614 & note 8 supra.